Your agreement to file under seal doesn't matter -- the public interest does

Parties regularly enter into protective orders or confidentiality agreements during litigation to be able to designate material confidential and/or attorneys-eyes-only.  This generally works well among litigants, but can be sticky when needing to file materials with the Court.  The Courts are public forums, theoretically open to all.

NXP, BV. has sued Research in Motion here in the Middle District for patent infringement.  (NOTE: GrayRobinson represents RIM as local counsel.)  The parties entered into such a confidentiality agreement, but a discovery dispute ensued.  To support their respective positions, each side needed to refer to information that had been designated confidential or attorneys-eyes-only.  So the parties filed redacted versions of their briefs, but jointly sought leave to file the confidential information under seal.

Generally, these motions are dispensed with quickly, which is why this decision caught my eye.  One of the first motions I ever filed was a motion to adopt the parties proposed protective order in a case here in the Middle District.  That joint motion was rejected by the Magistrate Judge because it did not specifically and explicitly follow the mandate of our Local Rule 1.09, which states that no document may be filed under seal without first seeking permission from the Court (unless there is some other law permitting such a filing).  (NOTE: In my defense, that joint motion that I filed years ago did indicate that filings under seal would only be done according to local rule, but we revised the motion when we refiled it to explicitly incorporate the provisions of L.R. 1.09.)

In the NXP decision, the Court wrote a detailed opinion explaining the reasoning behind this practice, and it's a short but worthwhile read:

In this Circuit, it is well settled that “[t]he operations of the courts and the judicial conduct of judges are matters of utmost public concern” and the integrity of the judiciary is maintained by the public's right of access to court proceedings. Romero v. Drummond Co., 480 F.3d 1234, 1245 (11th Cir.2007) (citing Landmark Commc'ns, Inc. v.Virginia, 435 U.S. 829, 839 (1978)). The public's right “includes the right to inspect and copy public records and documents.” Chicago Tribune, 263 F.3d at 1311. But, the public's right of access is not unfettered and does not apply to discovery. Romero, 480 F.3d at 1245. Indeed, “the need for public access to discovery is low because discovery is ‘essentially a private process ... the sole purpose [of which] is to assist trial preparation.’ “ Id. (quoting United States v. Anderson, 799 F.2d 1438, 1441 (11th cir.1986). And, “[t]he prospect of all discovery material being presumptively subject to the right of access would likely lead to an increased resistance to discovery requests.” Chicago Tribune, 263 F.3d at 1312 n. 10. 

Courts draw a distinction between documents filed with discovery motions and documents filed in connection with other types of motions. “ ‘[T]here is a presumptive right of public access to pretrial motions of a nondiscovery nature, whether preliminary or dispositive, and the material filed in connection therewith.’ “ Id. at 1246 (quoting Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 164 (3d Cir. 1993)). Material filed as part of a discovery motion is not subject to the common law right of access. Chicago Tribune, 263 F.3d at 1312. 

“The common law right of access may be overcome by a showing of good cause, which requires balancing the asserted right of access against the other party's interest in keeping the information confidential.” Romero, 480 F.3d at 1245 (quoting Chicago Tribune, 263 F.3d at 1313). In balancing these interests “courts consider, among other factors, whether allowing access would impair court functions or harm legitimate privacy interests, the degree of and likelihood of injury if made public, the reliability of the information, whether there will be an opportunity to respond to the information, whether the information concerns public officials or public concerns, and the availability of a less onerous alternative to sealing the documents.” Id. at 1246. “Good cause is established by the moving party when disclosure will cause the party to suffer a clearly defined and serious injury.” Vista India, Inc. v. Raaga, LLC, Case No. 07–1262, 2008 WL 834399 *2 (D.N.J. Mar. 27, 2009). The parties' agreement to seal court documents “is immaterial” to the public's right of access. Brown v. Advanatage Eng'g, 960 F.2d 1013, 1016 (11th Cir.1992).

The Court went on to explain that it needed the confidential information at issue to resolve the parties' discovery dispute, and that the confidential information indeed satisfied the tests described above.

Joint Motion to File Under Seal, Granted
NXP BV v. Research In Motion Ltd, Case No. 6:12-cv-498 (M.D. Fla. Aug. 15, 2013) (Mag. Smith)